Opinion
02 Civ. 0219 (DLC) (AJP).
February 17, 2005
REPORT AND RECOMMENDATION
To the Honorable Denise L. Cote, United States District Judge:
Pro se petitioner Rodney Steven Skinner seeks a writ of habeas corpus from his June 17, 1983 conviction in Supreme Court, New York County, of two counts of first degree robbery and one count of first degree criminal use of a firearm. (Dkt. No. 1: Pet. ¶ 2;see also Dkt. No. 18: Trial Transcript at 638-39.) Skinner's November 27, 2000 habeas petition asserts four claims: (1) he was convicted by use of evidence obtained pursuant to an unlawful arrest (Pet. ¶ 12(A)); (2) the prosecution failed to disclose favorable evidence (Pet. ¶ 12(B)); (3) his protection against double jeopardy was violated (Pet. ¶ 12(C)); and (4) he was denied his right to appeal. (Pet. ¶ 12(D)).
For the reasons set forth below, Skinner's petition should be DENIED on the ground that he was no longer "in custody" on his 1983 conviction when he brought this habeas petition on or about November 27, 2000.
FACTS
Skinner's 1983 Trial, Sentence and ParoleSkinner was convicted of two counts of first degree robbery and one count of first degree criminal use of a firearm. (Dkt. No. 18: Trial Transcript at 638-39.) On June 17, 1983, Skinner was sentenced to concurrent terms of two to six years imprisonment on each count. (Dkt. No. 18: 6/17/83 Sentencing Transcript at 18.) Skinner was advised of his right to appeal, and indeed he stated that he had received "written notice of [his] right to appeal." (Sentencing Tr. at 19-20.)
Skinner was released on parole on May 3, 1985. (Dkt. No. 22: 2/2/05 Supp. Aff. of Asst. Atty. General Kimberly Morgan, ¶ 3 Ex. A: Certificate of Release to Parole.) On April 30, 1987, however, Skinner's parole was revoked when he was arrested and subsequently convicted of third degree arson and criminal mischief. (Morgan 2/2/05 Supp. Aff. ¶ 3.) As a result, Skinner returned to prison on June 2, 1987, where the two years and two days remaining on his 1983 sentence was added to his new sentence of four to eight years. (Morgan 2/2/05 Supp. Aff. ¶ 3 Ex. B.)
On June 2, 1995, New York issued Skinner a certificate of final parole discharge. (Morgan 2/2/05 Supp. Aff. ¶ 3 Ex. C: 6/2/95 Div. of Parole Final Discharge.) As noted above, his federal habeas petition was not filed until more than five years later, on November 27, 2000. (Dkt. No. 1: Pet. at 7.)
Skinner's Separate 1997 Trial Sentence
On January 31, 1996 Skinner was arrested, and on February 21, 1997 the jury found him guilty of first degree assault, three counts of second degree criminal possession of a weapon, and fourth degree tampering with a witness, the crimes for which he is currently incarcerated. See Skinner v. Duncan, 01 Civ. 6656, 2003 WL 21386032 at *1, 5 (S.D.N.Y. June 17, 2003) (Peck, M.J.).
On June 23, 1997, Skinner was adjudicated a persistent felony offender and sentenced to four concurrent terms of twenty-five years to life, and a concurrent one year term. See Skinner v.Duncan, 2003 WL 21386032 at *5. On February 10, 2000, the First Department affirmed Skinner's conviction but reduced Skinner's sentence to "'four concurrent terms of 17 years to life concurrent with a term of 1 year.'" Id. at *7 (quoting People v. Skinner, 269 A.D.2d 202, 202-03, 704 N.Y.S.2d 18, 19-20 (1st Dep't), appeal denied, 95 N.Y.2d 838, 713 N.Y.S.2d 145 (2000)).
Skinner's Direct Appeal from His 1983 Conviction
On June 21, 1983, Skinner filed a timely notice of appeal to the First Department. On February 28, 1995, almost twelve years later, the First Department dismissed Skinner's appeal for his failure to perfect the appeal. (See Dkt. No. 17: Morgan Aff. Ex. A: 2/28/95 1st Dep't Order.) Almost three years later, on or about December 2, 1997, Skinner moved, pro se, for an extension of time for taking the appeal. (Morgan Aff. Ex. B.) On March 17, 1998, the First Department denied that motion. (Morgan Aff. Ex. C: 3/17/98 1st Dep't Order.) On April 17, 1998, the New York Court of Appeals denied leave to appeal. (Dkt. No. 3: Skinner 3/4/02 Aff. Ex. A: 4/17/98 N.Y. Ct. App. Order.)
Skinner's C.P.L. § 440 Motions
In late 1997 or January 1998, Skinner moved pro se, pursuant to C.P.L. § 440, to vacate the judgment and set aside his 1983 sentence, alleging that resubmission of charges to the grand jury was improper and violated his federal constitutional due process rights against double jeopardy. (Dkt. No. 17: Morgan Aff. Ex. D: Skinner § 440 Motion Addendum.)
On February 20, 1998, the § 440 court denied Skinner's motion, finding that Skinner "failed to articulate a ground upon which the relief requested can be granted." (Morgan Aff. Ex. E: 2/20/98 Order.) Skinner sought leave to appeal to the First Department on March 15, 1998. (Morgan Aff. Ex. F.) The First Department denied leave to appeal on June 18, 1998. (Morgan Aff. Ex. G: 6/18/98 1st Dep't Order.) Skinner's Coram Nobis Application
Skinner also brought § 440 motions in 1990 and in 1999. (See Skinner Traverse Ex. E: State § 440 Opp. at 3-5.) The § 440 court denied those § 440 motions on March 15, 1991 (id., 3/15/91 Order) and February 22, 1999 (Skinner Traverse Ex. E-1: 2/22/99 Order).
Skinner applied to the First Department on September 22, 1999 for a writ of error coram nobis on grounds that appellate counsel was ineffective for failing to: (1) submit a brief despite having been retained by his family to do so; (2) file a C.P.L. § 30.30 speedy trial motion; and (3) argue that the prosecution was improperly permitted to resubmit charges to the grand jury. (Dkt. No. 17: Morgan Aff. Ex. H.) On June 15, 2000, the First Department denied Skinner's coram nobis petition, without opinion. (Dkt. No. 17: Morgan Aff. Ex. I: 6/15/00 1st Dep't Order.) The New York Court of Appeals denied leave to appeal on October 26, 2000. (Dkt. No. 3: Skinner 3/4/02 Aff. Ex. F: 10/26/00 N.Y. Ct. App. Order.)
Skinner's Direct Federal Habeas Corpus Petition
Skinner's pro se federal corpus petition is dated November 27, 2000 and was received by this Court's Pro Se Office on January 31, 2001. (Dkt. No. 1: Pet.) On October 8, 2002, Chief Judge Mukasey dismissed the petition as time barred under the Antiterrorism and Effective Death Penalty Act ("AEDPA"). (Dkt. No. 5: 10/8/02 Order.) Noting that Skinner's conviction became final on July 17, 1998 (90 days after the N.Y. Court of Appeals denied leave to appeal on his direct appeal), Chief Judge Mukasey calculated that the last date for filing a habeas petition would have been July 16, 1999. (Dkt. No. 5: 10/8/02 Order.)
Skinner appealed to the Second Circuit. (Dkt. No. 7: Notice of Appeal.) On April 11, 2003, the Second Circuit found Skinner's petition to be timely because of tolling from the pendency of Skinner's § 440 motion and coram nobis petition. (Dkt. No. 9: 7/9/03 2d Cir. Mandate.) The case was reopened in this Court on October 21, 2003 (Dkt. No. 10: 10/21/03 Order), and the petition referred to me for a Report and Recommendation on August 31, 2004 (Dkt. No. 12).
Skinner's federal habeas petition alleges that: (1) he was convicted by use of evidence obtained pursuant to an unlawful arrest (Pet. ¶ 12(A)); (2) the prosecution failed to disclose favorable evidence (Pet. ¶ 12(B)); (3) his protection against double jeopardy was violated (Pet. ¶ 12(C)); and (4) he was denied his right to appeal (Pet. ¶ 12(D)).
ANALYSIS THE COURT LACKS JURISDICTION OVER SKINNER'S HABEAS PETITION BECAUSE HE WAS NOT "IN CUSTODY" ON THE 1983 CONVICTION WHEN HE BROUGHT IT
The State also asserts that Skinner's petition is time barred (Dkt. No. 16: State Br. at 9-13) and, in any event, without merit (id. at 16-23). The Court need not reach these issues.
The Court must first determine whether Skinner meets the "in custody" requirement for federal habeas review. 28 U.S.C. § 2254(a). The writ of habeas corpus is available to any individual "in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a) (emphasis added); see also 28 U.S.C. §§ 2241(c)(1)-(3), 2254(d)-(e), 2255. While a petition filed after the expiration of a sentence does not meet the "in custody" requirement, see Maleng v. Cook, 490 U.S. 488, 490-91, 109 S. Ct. 1923, 1925 (1989), actual physical imprisonment is not required, so long as a petitioner suffers from substantial restraints not shared by the general public, such as parole conditions. See, e.g., Maleng v. Cook, 490 U.S. at 491, 109 S. Ct. at 1925;Hensley v. Municipal Court, 411 U.S. 345, 351, 93 S. Ct. 1571, 1574-75 (1973); Dixon v. Miller, 293 F.3d 74, 78 (2d Cir.), cert. denied, 537 U.S. 955, 123 S. Ct. 426 (2002);LoFranco v. United States Parole Comm'n, 986 F. Supp. 796, 802 (S.D.N.Y. 1997) (Peck, M.J.).
Long before he filed his present federal habeas petition, Skinner had served his entire sentence for his 1983 conviction from which he now seeks habeas relief. Skinner was released from custody (including parole) on June 2, 1995. (See page 2 above.) It was not until January 31, 1996 that he was arrested and subsequently convicted for unrelated crimes. (See pages 2-3 above.) In June 1997, Skinner was adjudicated a persistent felony offender, based in part on his 1983 conviction. (See page 3 above; see also Dkt. No. 1: Pet. ¶ 17.)
The issue of whether a defendant who was no longer "in custody" could bring a habeas petition because a subsequent sentence was enhanced by that conviction was addressed by the Supreme Court inMaleng v. Cook, which is worth quoting at some length:
The federal habeas statute gives the United States district courts jurisdiction to entertain petitions for habeas relief only from persons who are " in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2241(c)(3) (emphasis added); see also 28 U.S.C. § 2254(a). We have interpreted the statutory language as requiring that the habeas petitioner be "in custody" under the conviction or sentence under attack at the time his petition is filed. See Carafas v. LaVallee, 391 U.S. 234, 238, 88 S. Ct. 1556, 1560, 20 L.Ed. 2d 554 (1968). In this case, the Court of Appeals held that a habeas petitioner may be "in custody" under a conviction whose sentence has fully expired at the time his petition is filed, simply because that conviction has been used to enhance the length of a current or future sentence imposed for a subsequent conviction. We think that this interpretation stretches the language "in custody" too far.
. . . .
We have never held, however, that a habeas petitioner may be "in custody" under a conviction when the sentence imposed for that conviction has fully expired at the time his petition is filed. . . . [O]nce the sentence imposed for a conviction has completely expired, the collateral consequences of that conviction are not themselves sufficient to render an individual "in custody" for the purposes of habeas attack upon it.
The question presented by this case is whether a habeas petitioner remains "in custody" under a conviction after the sentence imposed for it has fully expired, merely because of the possibility that the prior conviction will be used to enhance the sentences imposed for any subsequent crimes of which he is convicted. We hold that he does not. While we have very liberally construed the "in custody" requirement for purposes of federal habeas, we have never extended it to the situation where a habeas petitioner suffers no present restraint from a conviction. Since almost all States have habitual offender statutes, and many States provide as Washington does for specific enhancement of subsequent sentences on the basis of prior convictions, a contrary ruling would mean that a petitioner whose sentence has completely expired could nonetheless challenge the conviction for which it was imposed at any time on federal habeas. This would read the "in custody" requirement out of the statute and be contrary to the clear implication of the opinion in Carafas v. LaVallee, supra.
In this case, of course, the possibility of a sentence upon a subsequent conviction being enhanced because of the prior conviction actually materialized, but we do not think that requires any different conclusion. When the second sentence is imposed, it is pursuant to the second conviction that the petitioner is incarcerated and is therefore "in custody."Maleng v. Cook, 490 U.S. at 490-93, 109 S. Ct. a 1925-26. The Supreme Court in Maleng, however, liberally construing the petition as asserting a challenge to the later "sentence, as enhanced by the allegedly invalid prior conviction," held that the defendant was "in custody" under the later conviction, but did not decide the extent to which the prior conviction could be challenged in the habeas attack on the later sentence it was used to enhance. Id., 490 U.S. at 493-94, 109 S. Ct. at 1927.
The Maleng Court's concern, that a contrary holding would allow federal habeas petitions to be brought "at any time,"id., has been largely — but as this case shows, not entirely — alleviated by the AEDPA's one year limitations period.
In 2001, the Supreme Court answered the question it had left open in Maleng v. Cook in Lackawanna County Dist. Attorney v. Coss, 532 U.S. 394, 121 S. Ct. 1567 (2001). In Lackawanna, the Supreme Court held that "once a state conviction is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), the conviction may be regarded as conclusively valid. If that conviction is later used to enhance a criminal sentence, the defendant generally may not challenge the enhanced sentence through a petition under § 2254 on the ground that the prior conviction was unconstitutionally obtained." Lackawanna County Dist. Attorney v. Coss, 532 U.S. at 403-04, 121 S. Ct. at 1574 (citation omitted); accord, e.g., Ortiz v. New York, No. 02-2514, 75 Fed. Appx. 14, 17 n. 2, 2003 WL 22055147 at *3 n. 2 (2d Cir. Sept. 4, 2003), cert. denied, 124 S. Ct. 2874 (2004); White v. Kapture, No. 01-2490, 42 Fed. Appx. 672, 673-74, 2002 WL 857741 at *2 (6th Cir. May 3, 2002); Jackson v.Miller, 260 F.3d 769, 773-74 (7th Cir. 2001), cert. denied, 535 U.S. 1038, 122 S. Ct. 1799 (2002); Dickens v. Filion, 02 Civ. 3450, 2002 WL 31477701 at *18 (S.D.N.Y. Nov. 6, 2002) (Peck, M.J.), report rec. adopted, 2003 WL 1621702 (S.D.N.Y. Mar. 28, 2003); Cary v. Ricks, 00 Civ. 8926, 01 Civ. 1181, 2001 WL 1035141 a *5 (S.D.N.Y. Sept. 7, 2001).
The Supreme Court in Lackawanna explained that its decision was based "on considerations relating to the need for finality of convictions and ease of administration," 532 U.S. at 402, 121 S. Ct. at 1573, and further explained:
The first and most compelling interest is in the finality of convictions. Once a judgment of conviction is entered in state court, it is subject to review in multiple forums. Specifically, each State has created mechanisms for both direct appeal and state postconviction review, even though there is no constitutional mandate that they do so. Moreover, § 2254 makes federal courts available to review state criminal proceedings for compliance with federal constitutional mandates.
As we said in Daniels, "[t]hese vehicles for review . . . are not available indefinitely and without limitation." A defendant may choose not to seek review of his conviction within the prescribed time. Or he may seek review and not prevail, either because he did not comply with procedural rules or because he failed to prove a constitutional violation. In each of these situations, the defendant's conviction becomes final and the State that secured the conviction obtains a strong interest in preserving the integrity of the judgment. Other jurisdictions acquire an interest as well, as they may then use that conviction for their own recidivist sentencing purposes, relying on "the 'presumption of regularity' that attaches to final judgments."
An additional concern is ease of administration of challenges to expired state convictions. Federal courts sitting in habeas jurisdiction must consult state court records and transcripts to ensure that challenged convictions were obtained in a manner consistent with constitutional demands. As time passes, and certainly once a state sentence has been served to completion, the likelihood that trial records will be retained by the local courts and will be accessible for review diminishes substantially.Lackawanna County Dist. Attorney v. Coss, 532 U.S. at 402-03, 121 S. Ct. at 1573-74 (citations omitted).
Here, Skinner asserts no claim that his 1983 conviction is still open to direct or state post-conviction attacks on the grounds he raises in his habeas petition. Although Skinner claims that he was denied his direct appeal of his 1983 conviction, he filed his appeal and the First Department dismissed it after his retained counsel failed to perfect the appeal for more than a decade. (See pages 3, 4 above; see also Pet. ¶ 15(a)-(e) Ex. 5: 8/30/99 Skinner Aff. at 2: "Affirmation Notice of Motion;" Skinner 2d Cir. Appeal Papers at 3: "Petitioner's family retained [two lawyers] who never perfected an appeal.") Skinner availed himself of available state post-conviction proceedings — several C.P.L. § 440 motions, as well as a coram nobis petition to the First Department, all of which were denied by the state courts. (See pages 3-4 above.)
The Supreme Court in Lackawanna recognized an exception to the general rule where "the prior conviction used to enhance the sentence was obtained where there was a failure to appoint counsel in violation of the Sixth Amendment." Lackawanna County Dist. Attorney v. Coss, 532 U.S. at 404, 121 S. Ct. at 1574. This exception has no applicability here, since Skinner was represented by counsel on his 1983 conviction throughout pre-trial and trial proceedings, sentencing and appeal. (Dkt. No. 1: Pet. ¶ 15.)
The Supreme Court explained:
[T]he "failure to appoint counsel for an indigent [is] a unique constitutional defect . . . ris[ing] to the level of a jurisdictional defect," which therefore warrants special treatment among alleged constitutional violations. Moreover, allowing an exception for Gideon challenges does not implicate our concern about administrative ease, as the "failure to appoint counsel . . . will generally appear from the judgment roll itself, or from an accompanying minute order."Lackawanna County Dist. Attorney v. Coss, 532 U.S. at 404, 121 S. Ct. at 1574 (citations omitted).
Three Justices in Lackawanna recognized the possibility of another exception to the general rule where (1) a state court unjustifiably refused to rule on a constitutional claim that had been properly presented to it, or (2) "[a]lternatively, after the time for direct or collateral review has expired, a defendant may obtain compelling evidence that he is actually innocent of the crime for which he was convicted, and which he could not have uncovered in a timely manner." Lackawanna County Dist. Attorney v. Coss, 532 U.S. at 405, 121 S. Ct. at 1575. Neither exception applies to Skinner's 1983 conviction. The state courts did not "unjustifiably refuse" to rule on any constitutional claim regarding Skinner's 1983 conviction; it was his retained counsel's failure to perfect his direct appeal that led to denial of his direct appeal, and the state courts did rule on the claims he raised in his collateral C.P.L. § 440 motions and coram nobis petition. (See pages 3-4 above.) Nor has Skinner claimed that he was "actually innocent" of the 1983 crimes.
See also, e.g., Stevenson v. Summners, 258 F.3d 520, 524-25 (6th Cir. 2001); Robinson v. Perlman, 02 Civ. 9302, 2003 WL 22053452 at *7 n. 1 (S.D.N.Y. Sept. 4, 2003),report rec. adopted, 2003 WL 22493499 (S.D.N.Y. Nov 4, 2003).
Accordingly, Skinner has not made out any exception toLackawanna's general rule, and he cannot challenge his 1983 conviction in this habeas proceeding.
The Court notes an additional impediment to Skinner's present petition. Even where a Lackawanna exception applies, the basis for the "in custody" determination is the challenge to the enhanced sentence of the later (here, 1997) conviction based on the earlier (1983) allegedly unconstitutional conviction. Here, however, Skinner's habeas petition challenging his 1997 conviction has already been decided by this Court. Skinner v.Duncan, 01 Civ. 6656, 2003 WL 21386032 (S.D.N.Y. June 17, 2003). That would make this petition a second or successive petition that could not be heard without leave from the Second Circuit. See, e.g., Boyd v. Smith, 03 Civ. 5401, 2004 WL 2915243 at *7-9 (S.D.N.Y. Dec. 17, 2004) (Peck, M.J.) (citing cases). Because the petition is denominated a challenge to Skinner's 1983 conviction, the Court has ruled on it under the Lackawanna doctrine rather than transferring it to the Second Circuit.
Nor can Skinner claim that he was not aware of these issues. At his June 23, 1997 sentencing, he acknowledged the denial of his 1983 appeal and raised the grand jury double jeopardy claim about his 1983 conviction. (6/23/97 Sentencing Tr. at 5-7.) Skinner did not, however, raise the sentencing issue in his habeas petition challenging his 1997 conviction.
CONCLUSION
For the reasons set forth above, Skinner's habeas petition should be DENIED. A certificate of appealability should not issue.
FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Denise L. Cote, 500 Pearl Street, Room 1040, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Cote. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S. Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825 (1992); Small v.Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).